Superior Fine Papers v. Newalta Corporation
CITATION: Superior Fine Papers v. Newalta Corporation, 2017 ONSC 6589
COURT FILE NO.: 3978/16 / CV-15-410-00
DATE: 2017-11-02
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Superior Fine Papers Inc., Reliance Holdings Limited and Reliance Developments Corporation
Plaintiffs
- and -
Newalta Corporation and Todd Smith
Defendants
- and between -
Revolution Environmental Solutions LP c.o.b. as Terrapure Environmental and Revolution Environmental Solutions Acquisition GP Inc.
Plaintiffs
- and -
Superior Fine Papers Inc., Reliance Holdings Limited and Reliance Developments Corporation
Defendants
COUNSEL: A. McLennan, Counsel for the Plaintiffs herein and for the same parties as Defendants in Court File No. CV-15-1410-00 R. Agarwal, Counsel for the Defendant, Newalta Corporation T. McGurrin, Counsel for the Defendant, Todd Smith and for the Plaintiffs in Court File CV-15-1410-00
HEARD: November 1, 2017
REASONS FOR DECISION
LEMAY J.
[1] These are two actions relating to a contract to perform environmental services for a former paper mill site in Thunder Bay. The first action, File No. CV-15-0410 was brought by Revolution Environmental Solutions LP c.o.b as Terrapure Environmental and Revolution Environmental Solutions Acquisition GP Inc. against Superior Fine Papers, Reliance Holdings Ltd. and Reliance Developments Corporation under the Construction Lien Act. I will refer to all of the Plaintiffs in this action as Terrapure, as they all appear to be related entities. I will also refer to Superior and the two Reliance entities as the "Property Owners" in the rest of this decision for ease of reference.
[2] The second action, Court File No. 3978/16, is a claim for breach of contract and negligent misrepresentation that was brought in Milton by the Property Owners against Newalta Corporation and Todd Smith. It arises out of the same contractual relationship that gave rise to the Thunder Bay lien action.
[3] These two actions have given rise to three related motions. First, the Property Owners have brought a motion to transfer the Thunder Bay action to the Court in Milton, which is the Court where actions in Halton Region are heard. I am the R.S.J.'s designate in Central West for hearing transfer motions, so the motion to transfer the Thunder Bay matter to Milton was placed before me.
[4] Second, the Property Owners have brought a motion to have these matters heard together, or one after the other, as the Trial Judge may direct. This is related to the transfer motion.
[5] Finally, there is a motion by Newalta to have the action against it stayed on the basis that the contract between Newalta and Superior Fine Papers has a jurisdiction clause, and the parties have attorned to the exclusive jurisdiction of the Courts of Alberta. This motion was brought first, and was originally scheduled before D. Fitzpatrick J. in Milton. However, after consideration, it was determined that all of the motions should be heard by one judge.
[6] For the reasons that follow, I am dismissing both Newalta's motion and the motion to transfer the Thunder Bay action to Milton. As a result, I do not have the jurisdiction to order these matters to be heard together. However, I am of the view that the connection of both of these actions to Thunder Bay is sufficiently strong that a transfer motion and the motion to try the matters together should be considered by the Regional Senior Justice of the Northwest Region, Warkentin R.S.J., and I have provided directions to facilitate that consideration in my reasons.
Background Facts
a) The Contract and the Work
[7] The property that forms the basis of this litigation is located in the City of Thunder Bay. One of the Defendants to the construction lien action (a Plaintiff in the Newalta action), Superior Fine Papers, became the owner of the property in March of 2012. It is not clear to me whether all the Property Owners actually have a beneficial interest in the property, and my use of Property Owners to describe them in this judgment is a convenience, and not a finding of fact. The Ministry of the Environment had previously issued Orders under the Environmental Protection Act for the remediation of the property.
[8] Superior Fine Papers retained the services of True Grit Consulting Ltd. to prepare a decommissioning plan for the property, and particularly for the lagoon system on the property that processed waste water. This plan was submitted to the Ministry of the Environment on August 20th, 2012, and was approved. The work under this plan was to be completed by December 31st, 2014.
[9] Superior Fine Papers needed assistance with the decontamination. As a result, Superior Fine Papers issued an RFP that Newalta responded to. A contract was originally signed between Newalta and Superior on July 21st, 2014. This contract was for the provision of dewatering and removal of sludge located in lagoons on the Property Owners' property, which is located adjacent to Thunder Bay Harbour. The lagoons drain into the harbor.
[10] This contract was entered into by Newalta's industrial division. In 2015, during the course of this contract, Newalta's industrial division was sold to Revolution Environmental Solutions LP, which has operated as Terrapure Environmental, one of the Plaintiffs in the Thunder Bay action.
[11] Some of the work was performed after Newalta sold its industrial division to Terrapure. The alleged non-performance of the work led to Superior not paying Terrapure.
[12] Before moving on to describe the actions, I should briefly note that both Superior Fine Papers and Terrapure have a number of other related entities all of whom are parties to the lien action. In addition, all of the Defendants in the lien action (the Property Owners) are Plaintiffs in the Newalta action. For the purpose of this motion, the relationships between these entities are generally not important, so as I have mentioned, I will refer to the Superior group as "the Property Owners" and all of the Terrapure parties as "Terrapure". The one exception in terms of the relationships between the parties comes with the contract with Newalta, which I will discuss below.
b) The Lien Action
[13] The lien action was commenced on September 29th, 2015. The Property Owners provided a statement of defence on November 30th, 2015, and the Terrapure parties amended their pleadings in mid-2016.
[14] On March 22nd, 2017, B. Fitzpatrick J. set the construction lien action down for trial by setting a pre-trial date to be held on May 18th, 2017. Mr. McLennan, counsel for the Property Owners, sought an adjournment of this pre-trial on the basis that he was going to be out of the country in May and June of 2017. It was adjourned to August 10th, 2017 on consent.
[15] At the August 10th, 2017 pre-trial before Warkentin R.S.J., the Property Owners then took the position that the pre-trial was premature because they were bringing a motion to have the matter transferred to Milton. This argument was rejected, and a timetable was set in place. That timetable includes a second pre-trial to be held on March 20th, 2018 before Warkentin R.S.J.
[16] Although this timetable sets out the completion of discoveries, those discoveries have not yet been held, as counsel for the Property Owners is seeking to have the transfer motion dealt with first. As I understand it, if successful on the transfer and hearing together motions, the Property Owners will be seeking a new timetable.
c) The Newalta Action and Newalta's Motion to Dismiss
[17] As noted above, Newalta was the original service provider in this case. The original contract to perform the services was between Newalta and Superior. That contract contains a jurisdiction provision that reads as follows:
The Services shall be governed by the laws of the province where the Services are performed. The validity, interpretation and performance of the Agreement shall be governed by end construed in accordance with Laws of the Province of Alberta without reference to conflict of laws principles. The parties hereby attorn to the exclusive jurisdiction of the courts of the Province of Alberta.
[18] Newalta relies on this position, and argues that the jurisdiction to hear this case rests exclusively in Alberta.
[19] It is clear from reading the contract that the parties to the contract were Newalta and Superior. It is also clear from reading the contract that neither of the two Reliance entities are mentioned in it. I am not, however, required to determine whether the Reliance entities have a cause of action against Newalta for the purposes of determining this motion.
[20] Newalta brought this motion in early July of 2017, with a return date of August 15th, 2017. Approximately ten days before the motion was to be heard, the Property Owners brought their motion to have the lien action transferred to Milton and to have the two actions tried together. That matter was originally to be heard by D. Fitzpatrick J. in Milton in August, but he adjourned it pending the outcome of the transfer motion.
[21] The transfer motion originally came before me on September 21st, 2017. On reviewing the materials and discussing the issues with counsel, I determined that both the transfer motion and the stay motion ought to be heard by the same Judge, and I directed that both matters be placed before me.
Issues
[22] As noted above, the issues in this case are as follows:
a) Should the Newalta matter be stayed?
b) Should the Construction Lien Act matter be transferred from Thunder Bay to Halton Region (Milton)?
c) Should the Construction Lien Act matter and the Newalta matter be heard together or one after the other?
[23] I will deal with each issue in turn.
Issue #1- Should the Newalta Matter be Stayed?
[24] No.
[25] In analyzing this issue, my consideration starts with the decision in Douez v. Facebook Inc. (2017 SCC 33). This is a very recent decision of the Supreme Court of Canada. In that case, the Court split 4-3 over whether a jurisdictional clause in Facebook's standard contract prevented the British Columbia courts from considering a privacy dispute. Facebook was unsuccessful in arguing that only the California courts could consider the issue.
[26] Two key points emerge from all three sets of reasons. First, that the common law permits the Court to consider which forum is the most convenient. Second, that the Court should be loath to interfere with such a forum selection clause absent good reason.
[27] The judgment also establishes a two-part test for considering these clauses. First, the contract must be otherwise enforceable at law. On this branch of the test, it for the party seeking the stay to establish that the clause is enforceable, and the Courts may consider both ambiguities and other issues of contract law.
[28] Second, once the forum selection clause is found to be enforceable, the onus shifts to the Plaintiff, in this case the Property Owners, to show "strong cause" as to why the court should not enforce the forum selection clause and stay the action. The strong cause factors are meant to provide some flexibility, but are applied restrictively in the commercial context.
[29] I will analyze each of these issues in turn.
a) The Enforceability of the Contract
[30] Mr. MacLennan, on behalf of the Property Owners, advances three main arguments as to why the forum selection clause is unenforceable, as follows:
a) The clause is ambiguous, because it refers to both the law of Ontario and the law of Alberta.
b) The clause is unconscionable, because there was no bargaining over it, and the Property Owners were simply required to accept the clause.
c) The clause should not be enforced because Newalta did not have the right to assign its obligations to another party.
[31] I agree that there is an ambiguity in the clause, in terms of what law applies to various aspects of the contract. There is some argument that the services are governed by the law of Ontario, and some argument that any breaches of contract are governed by the law of Alberta.
[32] However, this ambiguity does not assist the Property Owners for two reasons. First, it is only an ambiguity about what law applies, and not where the dispute is to be adjudicated. The clause is clear that the parties, by signing the contract, attorn to the exclusive jurisdiction of Alberta.
[33] Second, there does not appear to be any significant differences between the laws of Ontario and Alberta as they relate to contract formation and negligent misrepresentation. I was not directed to any unique statutes in either jurisdiction, and I was not directed to any differences in the common law between Ontario and Alberta.
[34] This brings me to the unconscionability argument. This argument is based on paragraph 13 of the Affidavit filed by Desmond Joseph, the President of the Property Owners. This paragraph states:
Subsequent e-mails and proposals were exchanged by the Defendant TS on behalf of the Defendant Newalta with me as the President of SFP, and accepted and signed on July 21, 2014 which then became the SFP/Newalta Contract with a start date of August 11, 2014. In this no changes to its standard form document were permitted by Newalta. The Orders of MOE had to be complied with or its deposit lost, so SFP no choice but to accept the document as is. There were no negotiations.
[35] There are two problems with this evidence. First, there is no evidence from Mr. Joseph about what steps were taken by the Property Owners to find another party to perform the work. Second, there is no evidence of any attempts by the Property Owners to negotiate a change to the jurisdiction clause.
[36] On the Property Owners' evidence, they were required to agree to this contract because they had a compliance plan with the Ministry of the Environment that they had to complete by the end of 2014. However, they were well aware of this plan by the time it was submitted in 2012, and I had no evidence before me of any steps that were taken by the Property Owners before 2014 to comply with these Orders.
[37] Unconscionability is a high threshold for a party to establish, particularly when the contract is between two independent commercial contracting parties with the sophistication of these parties. The test for unconscionability is set out by Abella J. in her concurring reasons in Douez (at paragraphs 112-115). In essence, it requires a party to demonstrate that the following factors were both met:
a) Inequality of bargaining power, in that one party is incapable of adequately protecting his or her interests.
b) Undue advantage or benefit secured as a result of that inequality.
[38] On the facts before me, I do not see any evidence that establishes, or even comes close to establishing, either branch of the test for unconscionability and I reject this argument.
[39] This brings me to the final argument on the first part of the test. Mr. McLennan asserts that the agreement could not be assigned and that, as a result, Newalta does not come to Court with clean hands. The clause in question reads as follows:
Assignment and Subcontracting
This agreement shall be binding on and shall inure to the benefit of the parties and their respective permitted successors and assigns. Customer may not assign all or any part of the Agreement, without the prior written approval of Newalta. The Services may be performed by Newalta or any affiliate and Newalta may subcontract all or any part of the Services in its sole discretion.
[40] Mr. McLennan argues that Newalta cannot assign its responsibilities under the contract, and that this is a well-accepted principle of contract law. As a general proposition, that may well be true.
[41] However, there are two reasons to reject this argument in this specific case. First, there is a specific contract provision in this case which clearly states that the customer cannot assign its rights. However, that provision states that Newalta can arrange to have its obligations performed by other parties. As a result, there is an argument that the contract can be assigned by Newalta.
[42] Second, this is not an issue that has to be decided at this stage. This is a question of contract interpretation. If the Alberta courts have exclusive jurisdiction over the question of contract interpretation, then whether a party has clean hands or not is a question for that court to adjudicate. Similarly, if Ontario has the jurisdiction, it is a question for the trial judge in Ontario to adjudicate. It is not a question that should be determined on a motion to transfer.
[43] Accordingly, I am of the view that the jurisdiction clause in this case is valid and enforceable. It is now up to the Plaintiff to demonstrate that there is a strong cause that this matter should not be adjudicated by the Alberta Courts. I now turn to that question.
b) The Strong Cause Argument
[44] In support of Newalta's position on the "strong cause" portion of the Argument, I was referred to the Ontario Court of Appeal decision in Expedition Helicopters Inc. v. Honeywell Inc. (2010 ONCA 351). In that decision, at paragraph 24, Juriansz J.A. states:
A forum selection clause in a commercial contract should be given effect. The factors that may justify departure from that general principle are few. The few factors that might be considered include the plaintiff was induced to agree to the clause by fraud or improper inducement or the contract is otherwise unenforceable, the court in the selected forum does not accept jurisdiction or otherwise is unable to deal with the claim, the claim or the circumstances that have arisen are outside of what was reasonably contemplated by the parties when they agreed to the clause, the plaintiff can no longer expect a fair trial in the selected forum due to subsequent events that could not have been reasonably anticipated, or enforcing the clause in the particular case would frustrate some clear public policy. Apart from circumstances such as these, a forum selection clause in a commercial contract should be enforced.
[45] These are all relevant factors for me to consider, and I accept that Courts should be loath to set aside a forum selection clause, particularly in a commercial contract.
[46] Further, when I review the list of factors set out by Juriansz J.A., none of them can be relied upon by the Property Owners to avoid the application of the forum selection clause. The clause is not otherwise unenforceable, there is no evidence that Alberta will not accept jurisdiction in this case, and there is no evidence that the Property Owners could not have a fair trial in Alberta.
[47] There was more argument focused on the question of whether these circumstances were reasonably foreseeable. In my view they were because, at the outset of the contract, there is always the possibility that the parties will have a dispute. As a result, the possibility of this litigation was reasonably foreseeable.
[48] However, that is not the end of the matter for two reasons. First, the Supreme Court has made it clear in Douez, supra., that the list of factors the Court is to consider is not a closed list. Second, and more importantly, the majority decision in Douez notes that there are two secondary factors that the Courts should consider, the interests of justice and the comparative convenience and expense of litigating in the alternate forum, in this case Alberta.
[49] In my view, both of these factors are applicable in this case. It must be remembered that, even if Newalta is successful in its motion to stay, there will still be an Ontario action against Mr. Smith. He has not sought the protection of the forum selection clause, in large part because he would not be entitled to the protection of that clause. It is Newalta's right, and not Mr. Smith's right. As a result, there will still be an action between the Property Owners and Mr. Smith in Ontario even if I apply the forum selection clause.
[50] As a result, a Court in Ontario is going to have to consider the facts underlying the Property Owners' claim against Newalta even if I stay the action against Newalta. It is usually more just and convenient, and less expensive to have a matter dealt with in one proceeding rather than multiple proceedings, particularly multiple proceedings that take place in different jurisdictions.
[51] I have considerable sympathy for the position taken by Newalta on this motion for two reasons. First, they have an otherwise valid and enforceable jurisdiction selection clause. Second, there is certainly an appearance that this litigation has been commenced for strategic reasons related to the construction lien matter. However, those factors are not sufficient to take away from the largest considerations in this case, which are the interests of justice and the comparative convenience and expense of litigating in Alberta as well as Ontario.
[52] However, if I give effect to the clause requiring Newalta to be sued in Alberta, then I am likely ensuring that there will be two separate proceedings (with the possibility of inconsistent outcomes), as Mr. Smith cannot rely on the clause in the Newalta contract. Further, it is clear that other issues related to the contract are also going to be adjudicated in Ontario, through the construction lien action. As a result, judicial economy and the interests of justice require, in these unique circumstances, that the action be dealt with in Ontario. The motion to stay the action is dismissed.
Issue #2- Should the Construction Lien Matter Be Transferred from Thunder Bay to Milton?
[53] No.
[54] The Rule governing transfer motions is Rule 13.1.02(1) and (2). These provisions state:
- 1.02 (1) If subrule 13.1.01(1) applies to a proceeding but a plaintiff or applicant commences it in another place, the court may, on its own initiative or on any party's motion, order that the proceeding be transferred to the county where it should have been commenced.
(2) If subrule (1) does not apply, the court may, on any party's motion, make an order to transfer the proceeding to a county other than the one where it was commenced, if the court is satisfied.
(a) that it is likely that a fair hearing cannot be held in the county where the proceeding was commenced; or
(b) that a transfer is desirable in the interest of justice, having regard to,
(i) where a substantial part of the events or omissions that gave rise to the claim occurred,
(ii) where a substantial part of the damages were sustained,
(iii) where the subject-matter of the proceeding is or was located,
(iv) any local community's interest in the subject-matter of the proceeding,
(v) the convenience of the parties, the witnesses and the court,
(vi) any advantages or disadvantages of a particular place with respect to securing the just, most expeditious and least expensive determination of the proceeding on its merits,
(vii) whether judges and court facilities are available at the other county, and
(ix) any other relevant matter.
[55] I have set the rule out in its entirety because of part of Mr. McLennan's argument. On behalf of the Property Owners, he argues that I have a jurisdiction to consider whether the matter is better left in Thunder Bay, or should be heard in the Greater Toronto Area.
[56] The problem with this argument is twofold. First, there are three (or possibly four if you include Hamilton and Central South) different regions that cover portions of the Greater Toronto Area. As a result, I do not have the jurisdiction to consider whether the matter should be transferred to the GTA at large.
[57] Second, in any event, the Rule is quite clear. It speaks to the "county" that the matter is being transferred to. County in the rules is defined as including, inter alia, a Regional Municipality. As a result, the question I have to consider is whether the matter should be in Thunder Bay or in the Region of Halton- i.e. in Milton.
[58] The leading case on transfer motions is Chatterson et. al. v. M&M Meatshops (2014 ONSC 1897 (Div.Ct.)). When that decision, and the other authorities, are considered, the following principles emerge:
a) If the Plaintiff's choice of venue is reasonable, then there will be a comparison of venues.
b) In comparing the venues, the Defendant's proposed venue must be substantially better than the Plaintiff's chosen venue.
c) The court will consider the factors under the Rule on a holistic basis.
[59] This brings me to the various factors under the Rule. I will analyze each in turn.
i) Where a Substantial Part of the Events or Omissions Occurred
[60] Mr. McLennan argues that, since the contract was formed in the GTA, this factor favours transferring the file to the GTA from Thunder Bay. He has chosen Halton region, he argues, because Newalta's offices were originally in Burlington, and his client's offices are in Mississauga.
[61] I disagree. The contract was to be performed in Thunder Bay regardless of where the agreement was reached. As a result, the substantial part of the events or omissions occurred in Thunder Bay. This factor favours leaving the lien action in Thunder Bay.
ii) Where a Substantial Part of the Damages Were Sustained
[62] Again, if the contract was improperly performed, it was improperly performed in Thunder Bay. Similarly, if Terrapure performed work in Thunder Bay for which it was not paid, then the damages it suffered occurred in Thunder Bay. This factor also favours leaving the lien action in Thunder Bay.
iii) Where the Subject Matter of the Proceeding Is Located
[63] The paper mill is in Thunder Bay. The ponds that were dredged (or supposed to be dredged) are also in Thunder Bay. Again, this factor favours leaving the lien action in Thunder Bay.
iv) Any Local Community's Interest in the Subject Matter of the Proceeding
[64] In this case, the subject matter of the proceeding is clearly of interest to the residents of Thunder Bay. This claim concerns the water and wastewater that flows (or could flow) into Thunder Bay harbor, as well as a pulp and paper mill that was part of the Thunder Bay community for a considerable period of time.
[65] It is, therefore, quite possible that this action will be of some interest to the Thunder Bay community. In addition, while this is a private dispute, it involves the environment, and concerns that are not merely between two parties. In circumstances such as these, the interest of the Thunder Bay community in the litigation might be significant.
[66] As a result, this factor also favours leaving the lien action in Thunder Bay.
v) The Convenience of the Parties, the Witnesses and the Court
[67] Under this factor, the convenience of the parties and the witnesses are paramount. The concerns of the Court can be dealt with under section (viii). Mr. McLennan argues that the parties are all in Southern Ontario. His client is based in Mississauga, for example. This is true.
[68] However, there are also the witnesses. Mr. McLennan argues that I should focus on the two principal witnesses, Mr. Todd Smith and Mr. Joseph. Mr. Smith lives in Waterloo and Mr. Joseph is in Mississauga. However, they are not going to be the only witnesses.
[69] In addition, there are going to be non-party witnesses. It appears from Terrapure's materials that most of these witnesses will be based in Thunder Bay. As a result, they will have to be subpoenaed to either attend at court in Thunder Bay or in Milton. It is obviously more convenient for them to be subpoenaed to attend in Thunder Bay.
[70] There are elements of this factor that favour having the action transferred to Milton. However, the preponderance of the considerations under this factor favours leaving the lien action in Thunder Bay.
vi) Are There Any Counterclaims, Third Party Claims or other Claims?
[71] In this case, there is the action against Newalta. It appears to me that this action is going to raise some related issues. As a result, at the moment, this is a factor that favours leaving the matter in Milton. I will return to this point below, in my holistic analysis.
[72] I was also advised that there were two other claims that had been brought in Toronto. Neither Terrapure nor Newalta are parties to these claims. I understand that they relate to mortgages and other actions. I will also address these claims below.
[73] Finally, Mr. McLennan advised the Court that there could be an issue relating to the question of whether Her Majesty the Queen in Right of Canada is, or should be, involved in this case. I had no particulars on that matter, and decline to consider it further, except to note that if Mr. McLennan is raising this issue, he is to advise the other parties and R.S.J. Warkentin within ten (10) days of the release of these reasons.
vii) Advantages and Disadvantages of a Particular Place
[74] I see nothing in the arguments that cause me to believe that this factor favours either Thunder Bay or Milton over and above the considerations that I have already set out above.
viii) The Availability of Court Facilities
[75] This is generally a consideration for the Court, rather than the parties. I am aware that the lien matter is proceeding in Thunder Bay, and that a second pre-trial is scheduled for March of next year. In other words, the litigation is relatively advanced, and a trial is likely in the next year. The lien matter would be delayed considerably if it was transferred to Milton.
[76] In addition, Milton currently has problems with handling additional lengthy trials in an expeditious matter. Those problems have been explained by RSJ Daley in 2305769 Ontario Ltd. v. Youth Opportunities (2016 ONSC 4447). Although it is not clear to me how long this trial will be, the claims that have been made, the fact that there may be two actions heard together and the fact that there will be a multiplicity of parties all suggest that this action could be longer than a week. As a result, there may be problems in having the matter heard promptly in Milton.
[77] This is a factor that supports leaving the lien action in Thunder Bay.
ix) Other Relevant Matters and the Holistic Considerations
[78] The Property Owners point to another case, involving different parties, where they agreed that a construction lien action would proceed in Milton rather than in Thunder Bay. They argue that this is a relevant factor for me to consider in this case. I disagree. The fact that different parties, in a different case, agreed that an action, even a similar action, would proceed in Milton does not mean that the construction lien action in this case meets the test for transfer to Milton. This is not a relevant factor for me to consider.
[79] The only other relevant matter is the timing of the Milton action, and of this motion. The timelines set out above make it clear that the construction lien action was commenced in 2015, and the Milton action was not commenced until late 2016. Further, the motion to transfer the lien action to Milton was not brought until August of 2017, well after the first pre-trial in Thunder Bay, and very shortly before a timetable for the lien action set by Warkentin R.S.J.
[80] Both Terrapure and Newalta argue that there is a litigation strategy on the part of the Property Owners by bringing this matter, and bringing it so late in time. I was not provided with any explanation as to why this motion to transfer is being brought almost two years after the lien action was commenced. Further, this motion is being brought in the shadow of a timetable that will lead to a trial in Thunder Bay relatively promptly.
[81] In the circumstances, I share Terrapure and Newalta's concerns. It appears to me that at least part of the reason for, and timing of, the transfer motion is to delay this matter. In the absence of a reasonable explanation as to why it took so long for this transfer motion to be brought, this is also a factor that favours leaving the construction lien action in Thunder Bay.
[82] On a holistic view of this case, construction lien action is clearly an action that belongs in Thunder Bay. As a result, the motion to transfer is dismissed.
[83] It could also be argued that the Newalta action also belongs in Thunder Bay rather than in Milton. However, that action was commenced in Milton and it is not for me to say whether it should be transferred to Thunder Bay. That is a matter for Warkentin R.S.J. to decide. However, I draw the attention of the parties to Rule 13.1.02(1), which gives the R.S.J. in Northwest Region the ability to consider this issue on her own motion. I will be providing Warkentin R.S.J. with a copy of these reasons.
[84] In addition, I am directing the parties that they are to contact the Northwest Region R.S.J.'s office with their positions on whether the Newalta action should be transferred to Thunder Bay within ten (10) days of the release of these reasons.
Issue #3- Should the Two Actions Be Heard Together?
[85] Given that only one of these actions is in the Central West Region, I cannot make an Order directing that they be heard together, or one after the other. However, based on the arguments before me, it would be reasonable to conclude that some sort of order might be appropriate.
[86] Again, however, that is not a matter for me to determine at this point. Instead, it is a matter to be determined by Warkentin R.S.J. The parties are also directed to advise the Northwest Region R.S.J.'s office of their position in terms of whether the two actions should be heard together within ten (10) days of the release of these reasons.
Conclusions and Costs
[87] For the foregoing reasons, I order as follows:
a) Newalta's motion for a stay is dismissed. The action against both it and Todd Smith will continue in Ontario.
b) The Property Owners' motion to transfer Court File No. CV-15-140 is dismissed.
c) The parties are to advise the Northwest Region R.S.J.'s Office of their position on whether Court File No. 3978/16 should be transferred to Thunder Bay within ten (10) calendar days of the release of these reasons.
d) The parties are to advise the Northwest Region R.S.J.'s Office of their position on whether Court File No. 3978/16 should be heard together with Court File No. CV-15-410 within ten (10) calendar days of the release of these reasons.
e) If the Property Owners are advancing any issues about Her Majesty in Right of Canada in either action, the particulars of those issues are to be set out within ten (10) days of the release of these reasons.
f) Newalta has twenty (20) days from the release of these reasons to deliver its Statement of Defence.
g) I have said ten (10) days for a number of events. Given that this decision is being released on a Thursday, this would result in a deadline of Sunday, November 12th, 2017. In addition, Monday, November 13th, 2017 is a Court holiday. As a result, ten (10) days would mean everything is due on Tuesday, November 14th, 2017.
[88] In terms of costs, the parties are each to file their costs submissions within seven (7) calendar days of the release of these reasons. Those submissions are to be no longer than two (2) single-spaced pages, exclusive of bills of costs, offers to settle and case law.
[89] Reply submissions are due from each party within seven (7) calendar days thereafter and are not to exceed one (1) single spaced page.
LEMAY J.
Released: November 2, 2017